by Brianna Baker – Green Philly, New Jersey Sustainability Reporting Hub
January 9, 2020
As the battle against a proposed natural gas pipeline in Pennsylvania and New Jersey heads to the U.S. Supreme Court, the Delaware Riverkeeper explains how opponents can wield their right to a clean environment.
Go to any environmental rally, Maya van Rossum says, and you’ll inevitably hear a speaker stress the public’s right to clean air and water.
“They miss the reality that it’s not true,” van Rossum, who heads the Delaware Riverkeeper Network (DRN), said. “We do have an inalienable right, but it doesn’t have any legal strength.”
That’s because there’s a gaping hole in the U.S. constitution. Though that document grants citizens the right to free speech, due process, and religion, it’s missing language that protects the people’s right to pure water, clean air, a stable climate and a healthy environment.
Pennsylvania and Montana are the only states in the country with environmental, or “green,” amendments in their state constitutions.
And right now, for residents of Pennsylvania and New Jersey, that legal right is more necessary than ever. In November, the PennEast Pipeline Co. moved to seek further review from the U.S. Supreme Court, after a decision by the U.S. Court of Appeals for the Third Circuit in New Jersey blocked the company from seizing state-owned land for its natural gas pipeline project.
The proposed fracked gas pipeline project was announced in 2014. It would travel from Luzerne County, Pennsylvania, through five more Pennsylvania counties, under the Delaware River and into Mercer County, New Jersey.
Though the PennEast project has received necessary federal and state approval, environmental activists have been fighting it from day one. The Third Circuit court decision was their biggest victory yet. But if the U.S. Supreme Court agrees to hear PennEast’s case and decides to reverse that decision, those activists will have more work on their hands.
It’s a case that’s all too familiar to van Rossum, an environmental activist and licensed attorney who, in her role as Delaware Riverkeeper, uses her legal expertise to advocate on behalf of the waterway. van Rossum was one of the original petitioners in the 2013 landmark case Robinson Township v. Commonwealth of Pennsylvania, which declared unconstitutional key sections of the pro-drilling Act 13 legislation.
“That decision gave legal life to Pennsylvania’s green amendment, which had been on the books for over 40 years, but had been, with the permission of the court, largely ignored because the courts had misinterpreted and misapplied the amendment,” van Rossum said.
According to van Rossum, such amendments are crucial to fighting fossil fuel infrastructure, like the PennEast Pipeline, which could have detrimental environmental effects.
“[PennEast] would cut through and under dozens and dozens of waterways, through wetlands, through forests,” van Rossum said. “Suffice it to say that it is a very intense footprint on the natural ecosystem of the community.”
Further, fracking—the extraction process PennEast would use—can contaminate local water supplies. And while natural gas emits less greenhouse gases than coal, fracking results in the leakage of methane, a gas that is 34 times stronger than carbon dioxide at trapping heat over a 100-year period.
PennEast Pipeline Co. and its proponents claim the pipeline is necessary to meet energy demands in Pennsylvania and New Jersey, as well as to create jobs and save residents money on their energy bills. According to a 2015 study from Econsult Solutions touted by the company, the pipeline would generate $1.62 billion in economic activity and support about 12,000 jobs with an associated $740 million in wages.
However, a report commissioned by DRN from Key-Log Economics found that the total estimated cost associated with the pipeline is between $13.3 and $56.6 billion, far outweighing the benefits. Further, a separate report commissioned by the New Jersey Conservation Foundation from The Goodman Group, Ltd. found that if PennEast went into operation, there would be a 53 percent surplus of gas in the state of New Jersey.
“There are clean energy options that are available today,” van Rossum added. “We can and should be getting the energy through other pathways.”
According to van Rossum, these are all reasons that the PennEast project, if executed, would violate the rights guaranteed by Pennsylvania’s green amendment. As such, that amendment may play a key role if the U.S. Supreme Court agrees to hear the PennEast case.
But nuances in the law may present an obstacle. Interstate pipelines like PennEast are regulated by the Federal Energy Regulatory Commission (FERC) under the Natural Gas Act. Essentially, that means they answer to the federal government rather than state governments.
While some may argue that this means Pennsylvania law—and thus its green amendment— does not apply to the pipeline, van Rossum disagrees.
“There is a small window of exception that, because of the Federal Clean Water Act, the state does have a role in reviewing and approving pipelines,” she said. “And that is that a state must issue something called a Clean Water Act 401 certification which confirms that the pipeline at issue will comply with all states’ water quality standards. So, the way I interpret the law, is that in doing the review and the approval of this 401 certification, state regulators should be bound by their green amendment’s constitutional duty.”
Advocating for the Green Amendment
Still, a green amendment at the federal level, rather than just the state level, would be much more effective in halting projects like PennEast across the country. She advocates for the law in her book, The Green Amendment.
In order to generate enough momentum for a national green amendment, van Rossum is pushing for every individual state to pass its own. She predicts that effort will be successful in New Jersey—DRN has already introduced the law into the state legislature, where it’s awaiting approval.
“There’s active and growing support for having a New Jersey green amendment,” she said. “So, I know we’ll get there. It’s just a matter of when.”
And even without a green amendment, at the state or federal level, van Rossum has a few other legal arguments up her sleeve to fight PennEast. She plans to lay them out in an amicus brief, a legal document filed in court cases by non-litigants with a strong interest in the subject matter.
While she doesn’t dare predict court cases, van Rossum is optimistic that in the cast of PennEast, environmental rights could win out.
“PennEast should not have overwhelming confidence that if their case were to go before the conservative US Supreme Court, that the decision is necessarily going to go their way,” she said.
This story was produced in collaboration with the New Jersey Sustainability Reporting Hub project. It was originally reported by Brianna Baker for Green Philly, and may be re-distributed through the Creative Commons License, with attribution.